[2020] KEHC 8126 (KLR)
The court found that, following the Supreme Court's decision in Muruatetu, the mandatory aspect of the life sentence for defilement is unconstitutional. As a result, the applicant is entitled to have his sentence set aside and the matter remitted for resentencing, where mitigation can be considered. The...
Source-derived case information.
- Citation
- [2020] KEHC 8126 (KLR)
- Parties
- Applicant: Muli Mwalyo; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Garissa
- Jurisdiction
- Kenya
- Case Number
- Criminal Miscellaneous Application 30 of 2019
- Procedural Posture
- Criminal Miscellaneous Application / Ruling
- Outcome
- Application for resentencing allowed; life sentence set aside; matter referred for resentencing.
- Judges
- CM Kariuki
- Legal Topics
- Defilement, Mandatory Sentencing, Resentencing, Constitutional Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Muli Mwalyo
Applicant
Republic
Respondent
Procedural Posture
Criminal Miscellaneous Application / Ruling
Legal Issues
- 1 Whether the mandatory life sentence for defilement is unconstitutional in light of the Supreme Court decision in Muruatetu.
- 2 Whether the applicant is entitled to resentencing after the mandatory sentence was set aside.
Ratio Decidendi
The court found that, following the Supreme Court's decision in Muruatetu, the mandatory aspect of the life sentence for defilement is unconstitutional. As a result, the applicant is entitled to have his sentence set aside and the matter remitted for resentencing, where mitigation can be considered. The prosecution's lack of opposition further supported granting the application.
Court Disposition
Application for resentencing allowed; life sentence set aside; matter referred for resentencing.
Orders
- The life sentence in Mwingi SRMCRC No. 553 of 2013 is set aside.
- Matter is referred back to Mwingi Law Courts for sentencing after mitigation is considered.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT GARISSA
CRIMINAL MISC. APPLICATION NO. 30 OF 2019
MULI MWALYO.....APPLICANT
VERSUS
REPUBLIC..........RESPONDENT
RULING
1. The applicant was convicted and sentenced to life imprisonment for the offence of defilement on allegation of defiling an 8 yrs and 11 months and 23 days girl.
2. He lodged appeal in High Court at Garissa No. 97 of 2014 which was dismissed and sentence upheld on the ground that it was mandatory sentence.
3. He never appealed to the Court of Appeal. He seeks resentencing under the spirit of Muruatetu case Supreme Court decision No. 15 and 16 of 2015 and made on 14/12/017 which has inspired superior courts to rule that mandatory aspect of a sentence is unconstitutional.
4. The prosecution does not oppose the application. Thus the application succeeds and court makes the following orders:
i. The life sentence in Mwingi SRMCRC No. 553 of 2013 is set aside.
ii. Matter is referred back to Mwingi Law Courts for sentencing after mitigation is considered.
DATED, DELIVERED AND SIGNED AT GARISSA THIS 19TH DAY OF FEBRUARY, 2020.
……………….………………
C. KARIUKI
JUDGE